Sutton v. Franklin Fire Insurance ( 1936 )

Civil action to recover on policy of insurance covering Chrysler automobile.

Upon denial of liability and issues joined, the plaintiff was awarded judgment against the Franklin Fire Insurance Company upon the policy issued by it, which was paid; whereupon, said defendant asked that the St. Paul Fire and Marine Insurance Company, which had also issued a policy on said automobile, be brought in as a party defendant, and that the "Franklin" have and recover of "St. Paul" one-half of said judgment.

Demurrer interposed to said cross action upon the ground that the facts alleged are not sufficient to constitute a cause of action. Demurrer sustained; exception. Appeal. The principal matter debated on brief, to wit, the alleged invalidity of defendant appellee's policy, Johnson v. Ins. Co., 201 N.C. 362,160 S.E. 454, is not presented by the record. It may be raised by answer.

The demurrer admits facts well pleaded, Oliver v. Hood, Comr., ante, 291; Phifer v. Berry, 202 N.C. 388, 163 S.E. 119, and it would seem that upon the facts alleged, nothing else appearing, the demurrer should have been overruled. Ramsey v. Furniture Co., ante, 165.

By demurring to the merits, the "St. Paul" put itself in court. MotorCo. v. Reaves, 184 N.C. 260, 114 S.E. 175.

Reversed.